Tuesday, November 18, 2008 11:11 AM

Senate Judiciary Committee Postpones Counterterrorism Subpoena

By SHANE HARRIS

Senate Judiciary Chairman Patrick Leahy, D-Vt., on Monday evening took a serious bargaining chip off the table in the committee's ongoing efforts to reveal secret Bush administration terrorism policies.

The committee has "postponed the return date" of a subpoena for Justice Department legal opinions that undergird the Bush administration's most controversial counterterrorism policies, including interrogation, detention and surveillance. The subpoena had been served on Attorney General Michael Mukasey and commanded him to "provide the legal advice issued by the Justice Department's Office of Legal Counsel" regarding those policies, Leahy's office said in a statement.

But now, it's not clear when those documents will be turned over. What's changed?

A committee staff member said on background, "This a committee-authorized and committee-issued subpoena. It's committee business. It's a subpoena to the current administration, and was issued before the election."

The postponement removes a significant check on the executive branch. Leahy said in a statement, "We still don't know the full scope of these ill-advised policies." But as for President-elect Barack Obama and his new team, Leahy said, "I am fully confident that the remaining OLC documents will be reviewed under the new administration."

No deadline, no demand. Even though the committee has not rescinded the subpoena, it's unclear what leverage lawmakers now have over the incoming administration, or whether they intend to force the release of the OLC documents at all.

As National Journal reported recently, the OLC documents in question are classified opinions that the Obama administration is presumably reviewing very carefully.

The full text of the committee statement follows after the jump.

WASHINGTON (Monday, Nov. 17, 2008) -- Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Monday postponed the return date of a Committee-issued subpoena for documents from the Department of Justice Office of Legal Counsel. The subpoena, which was served on Attorney General Michael Mukasey, commanded the Attorney General to provide the legal advice issued by the Justice Department's Office of Legal Counsel (OLC) concerning the administration's national security policies related to terrorism.

In a letter sent to Leahy dated November 14, the Department of Justice indicated that six unredacted, unclassified documents related to the Committee subpoena would be provided to Committee members on November 17 and other documents would be made available for review.

"I appreciate the efforts of the Justice Department to respond to this subpoena, and was pleased to learn of their intention to provide materials not previously made available to us. This is a good start," said Leahy. "I will work in the coming days with the Justice Department to ensure that the Committee receives access to these promised documents, and I am fully confident that the remaining OLC documents will be reviewed under the new administration."

"Under the Bush-Cheney administration, the Office of Legal Counsel secretly misconstrued laws passed by Congress. By writing secret law, OLC has given this administration a legal 'free pass' for its misguided policies, including its policies concerning interrogation and torture. The advice we have seen has been deeply flawed, sloppy, and wrong. Today, we still don't know the full scope of these ill-advised policies."

For more than five years, Leahy and other members of the Senate Judiciary Committee have sought OLC documents concerning the Bush administration's terrorism policies, including its detainee and interrogation practices. In an August letter to White House Counsel Fred Fielding, Leahy and Committee Ranking Member Arlen Specter (R-Pa.) again requested a comprehensive index of legal memorandum, letters and opinions from the Office of Legal Counsel. In September, the Judiciary Committee authorized Leahy to issue subpoenas for OLC's legal advice relating to the administration's national security policies.

The November 14 letter [PDF] from the Justice Department indicated that the Committee would receive the following documents on Monday:

• March 18, 2004 memorandum regarding "Protected persons' in Occupied Iraq" (subpoena item 1.A)
• November 6, 2001 memorandum entitled "Re: Legality of the Use of Military Commissions to Try Terrorists" (subpoena item 1.H)
• February 7, 2002 memorandum entitled "Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949"
• October 23, 2002 memorandum entitled "Authority of President Under Domestic and International Law to Use Military Force Against Iraq"
• November 8, 2002 memorandum entitled "Effect of a Recent United Nation's Security Counsel Resolution on the Authority of the President Under International Law to Use Military Force Against Iraq"
• December 7, 2002 memorandum entitled "Further Material Breach Under U.N. Security Counsel Resolution 1141 as a Result of False Statements or Omissions in Iraq's WMD Declaration"

The Justice Department also indicated on November 14 that additional documents would be made available for Committee review, including:

• October 23, 2001 memorandum regarding "Authority for Use of Force to Combat Terrorist Activities Within the United States" (subpoena item 1.C)
• June 27, 2002 memorandum regarding the "Applicability of 18 U.S.C. 4001 (a) to Military Detention of United States Citizens" (subpoena item 1.D)